United States v. Zigmond

UNITED STATES OF AMERICA, Plaintiff,v.BORIS ZIGMOND, et al., Defendants.

ORDER DENYING DEFENDANT ZIGMOND'S MOTION TO
DISMISS THE INDICTMENT, OR IN THE ALTERNATIVE, SUPPRESS
WIRETAP COMMUNICATIONS (DOC. 202)

GEORGE
CARAM STEEH UNITED STATES DISTRICT JUDGE.

Defendant
Boris Zigmond is charged with conspiracy to distribute and
possess with intent to distribute controlled substances in
violation of 21 U.S.C. §§ 841(a)(1), 846, and
conspiracy to commit money laundering in violation of 18
U.S.C. § 1956(h). This matter is presently before the
Court on Zigmond's Motion to Dismiss the Indictment, or
in the alternative, Suppress the Wiretap Communications.
(Doc. 202). Oral argument was held on July 13, 2017. For the
reasons stated below, Zigmond's motion is DENIED.

I.
Background

On
November 5, 2014, the government filed an application, along
with a supporting affidavit, to authorize the interception of
communications between Rodney Knight and numerous
individuals, including Zigmond, regarding an investigation of
a target telephone (TTI) allegedly belonging to Knight.
District Judge Robert H. Cleland issued an authorization
order on the same date. On February 25, 2015 the Government
applied to intercept communication of a second target
telephone (TTII) purportedly belonging to Zigmond. District
Judge Mark A. Goldsmith issued an authorization order on the
same date. Both applications included supporting affidavits.
The affidavits and authorization orders each discussed
minimization procedures. Zigmond challenges sufficiency and
scope of these documents.

II.
Legal Standard

A.
The Fourth Amendment

The
Fourth Amendment guarantees “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, ” and
states that “no warrants shall issue, but upon probable
cause, supported by oath or affirmation. . . .” U.S.
Const. amend. IV. Officers, therefore, “must obtain a
valid warrant and conduct the search in a reasonable
manner.” Baranski v. Fifteen Unknown Agents of
Bureau of Alcohol, Tobacco & Firearms, 452 F.3d 433,
445 (6th Cir. 2006). A search is unreasonable where it is
“out of proportion to the end sought.” United
States v. Costner, 153 F.2d 23, 26 (6th Cir. 1946).
“There is no formula for the determination of
reasonable. Each case is to be decided on its own facts and
circumstances.” Id. (internal quotations and
citations omitted). The Court shall look at “the
totality of the circumstances, ” Ohio v.
Robinette, 519 U.S. 33, 39 (1996), and consider
“whether what was done and found bears a reasonable
relation to the authority then possessed and exercised or
transcends it to become oppression.” Costner,
153 F.2d at 26.

B.
The Sixth Amendment

The
Sixth Amendment protects a defendant's right to effective
assistance of counsel, which is “the right of the
accused to require the prosecution's case to survive the
crucible of meaningful adversarial testing.” United
States v. Cronic, 466 U.S. 648, 654 (1984). The right to
counsel “does not attach until the initiation of
adversary judicial proceedings, ” whether “by way
of formal charge, preliminary hearing, indictment,
information, or arraignment.” United States v.
Gouveia,467 U.S. 180, 188 (1984) (quoting Kirby v.
Illinois,406 U.S. 682, 689 (1972)).

C.
Title III of the Omnibus Crime Control and Safe Streets Act
of 1968

Title
III of the Omnibus Crime Control and Safe Streets Act of
1968, 18 U.S.C. § 2510 et seq., (Title III),
requires “each application for an order authorizing or
approving the interception of a wire, oral, or electronic
communication” to include “a full and complete
statement as to whether or not other investigative procedures
have been tried and failed or why they reasonably appear to
be unlikely to succeed if tried or to be too
dangerous.” 28 U.S.C. § 2518(1)(c). See
also 28 U.S.C. § 2518(3)(c) (requiring the judge
approving a wiretap to determine that “normal
investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or too
be too dangerous.”). “Any aggrieved person in any
trial, hearing, or proceeding in or before any court . . .
may move to suppress the contents of any wire or oral
communication intercepted pursuant to this chapter, or
evidence derived therefrom, on the grounds that - (i) the
communication was unlawfully intercepted; (ii) the order of
authorization or approval under which it was intercepted is
insufficient on its face; or (iii) the interception was not
made in conformity with the order of authorization or
approval.” 28 U.S.C. § 2518(10)(a).

III.
Analysis

A.
The Fourth Amendment

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Zigmond
raises three challenges based upon the Fourth Amendment.
Zigmond first asserts that the Government made material
misstatements and omissions to the supervising court. A
defendant may move to suppress evidence by challenging a
warrant affidavit on the basis that it contains a false
statement. Franks v. Delaware,438 U.S. 154, 155-56
(1978). Evidence shall be suppressed if the affidavit&#39;s
remaining content is insufficient to establish probable
cause. Id. at 156. A defendant may raise a similar
...

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